Vore v. State
| Decision Date | 26 February 1954 |
| Docket Number | No. 33438,33438 |
| Citation | 158 Neb. 222,63 N.W.2d 141 |
| Parties | VORE v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An application for a continuance is addressed to the sound discretion of the trial court and its ruling thereon will not be held erroneous unless an abuse of discretion is disclosed by the record.
2. The liability of a county for the per diem and mileage of defendant's witnesses in a prosecution for a felony must arise from some express provision of the statutes and not by implication.
3. A statute (section 29-1908, R.R.S.1943) providing that in a criminal action the defendant is entitled to secure the attendance of witnesses in his behalf from without the state does not authorize the courts to procure their attendance at the expense of the county.
4. Section 29-1904, R.R.S.1943, does not authorize the taking of the depositions of witnesses for the defendant at the expense of the county.
5. A motion may properly be overruled when it cannot be allowed in substantially the same terms as requested.
6. A statute providing that a presumption of intoxication arises upon a determination that the amount of alcohol in the subject's body fluid at the time in question is 0.15 percent or more by weight, as shown by chemical analysis, is in derogation of the common law and subject to strict construction.
7. Where it is shown that the amount of alcohol in the subject's body fluid is less than 0.15 percent by chemical analysis, by weight, no presumption of intoxication arises under such statute, and it is prejudicial error to submit such issue to the jury.
David S. Lathrop, Warren C. Schrempp, and L. W. Powers, Omaha, for plaintiff in error.
Clarence S. Beck, Atty. Gen., Bert L. Overcash, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
Defendant was charged and convicted of the offense of motor vehicle homicide. He brings the case here for review.
The defendant was 21 years of age at the time of the trial. He was employed as a truck driver at $35 per week at the time the alleged offense was committed. He was a resident of Denison, Iowa, and appears to have had a good reputation as a law-abiding citizen prior to the happening of the events hereinafter set forth.
The record shows that on May 4, 1952, the defendant came to Council Bluffs, Iowa, to attend the stock car races. He was accompanied by Joseph Smith, Ronald J. Pruter, Vern Carstensen, and Mert Brockman. They came in an automobile owned by Pruter. They had a case of 3.2 beer in the car when they left home. Defendant admits drinking three or four cans of beer prior to 4 p. m. After the races were over they decided to drive to Fremont, Nebraska, to visit a friend who had formerly lived in Denison. On arrival in Fremont they found that their friend was not at home. They started home, and a few miles outside of Fremont they overtook a car being driven by one Paul Scadden and in which Delores Luce was riding. The defendant was driving at the time. While driving at a high rate of speed defendant hit the Scadden car with great force, causing it to leave the highway and turn over. Delores Luce was instantly killed, the evidence showing that she was decapitated as a result of the force of the impact. Insufficiency of the evidence to sustain a verdict is not assigned as error, nor is the sentence claimed to be excessive.
The defendant contends that the trial court erred in not granting a continuance, in not requiring the county to pay the expense of compulsory process or the cost of taking depositions, and in admitting certain evidence of a medical expert offered by the State and the correctness of the instructions with respect thereto. We shall deal with these assignments in the order in which we have stated them.
It appears from the evidence that at the time of the accident defendant was accompanied by four young men who were subsequently inducted into the armed forces. None of them was present for the trial, and defendant moved for a continuance for this reason. The accident occurred on May 4, 1952. The record does not show the date that the complaint was filed, but a preliminary hearing was had in August 1952. On August 28, 1952, the information was filed in the district court. Defendant was arraigned on January 30, 1953. On March 10, 1953, the trial was definitely set for April 13, 1953. The affidavits filed in support of the motion for a continuance state that the four young men accompanying him were eye witnesses, but it is nowhere stated what they would testify to if they were present. The addresses of three of them were known to the defendant long before the trial. Defendant had counsel representing him from the beginning of the litigation. Ray Carstensen testified that he is the father of Vern Carstensen and that the latter at the time of trial was located at Camp Roberts, California. He stated that Vern was inducted into the service on Feruary 9, 1953, 9 months after the accident of May 4, 1952. Horace Smith testified that he is the father of Joseph Smith and that the latter was located with the American Armed Forces in Austria at the time of the trial. He testified that Joseph was inducted into service on May 7, 1952, and that he was home on furlough in the fall of 1952, probably in October of that year.
The evidence shows a complete want of diligence in obtaining the evidence of these eye witnesses to the accident. It was known that the young men riding with defendant were about to go into service, but nothing was done at that time about obtaining their evidence for use at the trial. One of them was home on furlough after the information was filed and nothing was done at that time to obtain his evidence for use at the trial. The affidavits in support of the motion for a continuance do not state what these witnesses would testify to, or even that their evidence would be material other than the conclusion of counsel for the defendant to that effect. The defendant had from May 4, 1952, to April 14, 1953, to obtain the testimony of these witnesses. Even if the materiality of the evidence had been shown, which it is not, the want of diligence is so great as to warrant the denial of a continuance. No abuse of discretion on the part of the trial court is shown by the record.
The general rule governing the right to a continuance is stated in Dolen v. State, 148 Neb. 317, 27 N.W.2d 264, 267, as follows: 'Generally this court has held that 'An application for a continuance is addressed to the sound discretion of the trial court and its ruling thereon will not be held erroneous, unless an abuse of discretion is disclosed by the record.''
The defendant contends, however, that the trial court erred in failing to enter an order for compulsory process for his witnesses and for an advance appropriation of 10 cents per mile and $5 per day for each witness payable out of the funds of the county. In Hewerkle v. Gage County, 14 Neb. 18, 14 N.W. 549, 550, in dealing with this very question, the court said: 'But it cannot be claimed, upon any reasonable construction of the language of the constitutional provision in question, that it was the intention of its framers to make it the duty of the legislature to provide for the payment of defendant's witnesses in such cases, and, however that may be, they certainly have never done it.' See, also, Worthen v. Johnson County, 62 Neb. 754, 87 N.W. 909.
In Fanton v. State, 50 Neb. 351, 69 N.W. 953, 955, 36 L.R.A. 158, it was clearly stated that "The right to compulsory process for witnesses does not and cannot extend to nonresident witnesses."
The defendant contends that these cases are no longer the law because of the enactment in 1937 of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, which is now sections 29-1906 to 29-1911, R.R.S.1943, inclusive. Section 29-1908, R.R.S.1943, makes no provision for the advancement of mileage and per diem to a defense witness from another state. The liability of a county for the per diem and mileage of defendant's witnesses in a prosecution for a felony must arise by some express provision of a statute, and not by implication. Worthen v. Johnson County, supra.
In State v. Fouquette, 67 Nev. 505, 221 P.2d 404, 410, a recent case arising under the uniform act now before us, the court said:
The defendant complains that the trial court erred in denying a motion to take depositions at county expense about 1 week before the trial. Defendant relies on section 29-1904, R.R.S.1943. But this statute does not provide for the taking of depositions at county expense in advance of the trial. Defendant was entitled to an order entitling him to take the depositions of witnesses, but when he coupled with it a demand that it be done at the expense of the county, he was not entitled to have his motion sustained. 'A motion may properly be overruled which cannot be allowed in substantially the same terms as requested.' Weideman v. Estate of Peterson, 129 Neb. 74, 261 N.W. 150.
We conclude that the trial court did not abuse its discretion in denying a continuance to the defendant...
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